Pregnant workers have certain protections under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but gaps remain. The Pregnant Workers Fairness Act (PWFA) aims to close the gaps and better protect pregnant employees. To implement the Act, the Equal Employment Opportunity Commission (EEOC) recently proposed regulations that significantly increase employers’ obligations to reasonably accommodate their pregnant employees.

Expanded protections

On August 11, 2023, the EEOC proposed rules to implement the PWFA, a law that took effect on June 27, 2023. Before the PWFA, the PDA (which amended Title VII of the Civil Rights Act of 1964) and the ADA provided pregnant and postpartum applicants and employees with certain limited protections.

Under the PDA, pregnant workers can show a violation only if they can identify similarly situated employees who received an accommodation or if there is direct evidence of disparate treatment. Under the ADA, pregnant employees have a right to an accommodation only if they can demonstrate they have a pregnancy-related disability, which doesn’t include the pregnancy itself.

Under the PWFA, pregnancy itself is a protected condition. Employers with 15 or more employees must now provide reasonable accommodations to any employee with known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would impose an undue hardship on the employers.

The EEOC’s proposed rules significantly expand the definition of “related medical conditions” to include “current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion.”

The proposed rules also broaden the definition of a “qualified” employee to those who temporarily can’t perform one or more essential job functions but will be able to perform them “in the near future.” “Near future” is defined as up to 40 weeks—the duration of a full-term pregnancy.

Temporarily suspending essential functions

The EEOC’s proposed regulations provide unique examples of potential accommodations, including providing a reserved parking space, moving the employee’s workspace closer to the restroom, modifying uniforms or equipment to account for changes in body size during and after pregnancy, and temporarily suspending one or more essential functions.

The PWFA has a similar definition of “undue hardship” as the ADA. Generally speaking, an accommodation creates an undue hardship if it causes significant difficulty or expense for the employer. The EEOC’s proposed rules highlight some of the similarities between the PWFA and ADA standards and provide some additional factors to consider for a specific kind of accommodation—i.e., temporary suspension of an essential function. Employees may request temporary suspension of one or more duties they can’t perform because of pregnancy or a related condition.

To evaluate whether a request to temporarily suspend an essential function imposes an undue hardship on the employer, the EEOC proposes several factors an employer should consider, including:

• The length of time the employee would be unable to perform the essential function;
• Whether there’s available work for the employee if the accommodation is provided;
• The nature of the essential function;
• Whether the employer has provided other employees with temporary suspensions of work duties;
• Whether other workers can perform the essential function; and
• Whether and how long the essential function can be postponed.

You should take note that the proposed regulations identify four accommodations that are presumed to be reasonable and don’t create an undue hardship:

• Allowing an employee to carry water and drink as needed in the work area;
• Allowing additional restroom breaks;
• Allowing employees whose work requires sitting to stand and whose work requires standing to sit; and
• Allowing breaks as needed to eat and drink.

Importantly, you may not require employees to take time off if another reasonable accommodation can be provided that will allow them to continue to work.

Takeaways

The public has 60 days from August 11 to comment on the proposed rules. In the meantime, you should review your current accommodation practices and handbook policies to ensure compliance with the PWFA and evaluate the impact the proposed rules, if implemented, will have on those practices and operations.